Opinion
41504.
ARGUED SEPTEMBER 7, 1965.
DECIDED OCTOBER 15, 1965. REHEARING DENIED NOVEMBER 3, 1965.
Action for damages. Bibb Superior Court. Before Judge Long.
Jones, Sparks, Benton Cork, E. Bruce Benton, C. Baxter Jones, for plaintiff in error.
Anderson, Walker Reichert, Albert P. Reichert, Mallory C. Atkinson, Jr., Miller, Miller Miller, Wallace Miller, Jr., contra.
1. The recompiled petition, filed as an amendment, did not state a new and distinct cause of action against the two defendants in error by alleging that Thompson Company was the "agent" of General Electric rather than a "distributor" as alleged in the original petition.
2. The recompiled petition likewise did not state a new and distinct cause of action by alleging that Thompson Company authorized and approved the installation of the electrical equipment in an inadequate duct because it was also alleged in the original petition that the contractor, a third party, had complete control of the designing and installation of the duct.
3. This court cannot say as a matter of law that Thompson Company was not under a duty to inspect replaced relay switches which it had been notified by their manufacturer, General Electric, might be defective.
4. Nothing less than actual notice of defective manufacture to one who installs defective equipment, will insulate the manufacturer from liability for negligent manufacture.
5. The petition does not show on its face that the negligent installation of defective relay switches was the sole proximate cause of the fire which damaged plaintiff's building.
The court erred in sustaining the motions, objections and general and special demurrers of Thompson Company and in sustaining the general demurrer of General Electric.
ARGUED SEPTEMBER 7, 1965 — DECIDED OCTOBER 15, 1965 — REHEARING DENIED NOVEMBER 3, 1965.
Milford B. Hatcher sued General Electric Company, Thompson Company and Conditioned Air, Inc., to recover damages for the alleged joint and concurring negligence of the three defendants. The recompiled petition, filed by way of amendment, was dismissed as to General Electric Company and Thompson Company, and the case is here on exception to these rulings.
The recompiled petition, alleging the joint and concurring negligence of the three defendants as being the proximate causes of damage of the building of petitioner because of a fire alleged to have been caused by their negligence, states substantially the following facts, omitting those not necessary to a decision of this case:
The aforesaid fire and the resulting loss and damage to petitioner were caused by the negligent and improper installation of heating equipment which was defective and which was negligently manufactured, all of which is set out in detail hereinafter. The defendant, General Electric Company, hereinafter referred to separately as "General" is a nationally known manufacturer of electrical equipment, including heating equipment, and owes to the public generally, including petitioner, the duty to exercise due care and skill in the manufacture, design and distribution of its electrical products to the public, and impliedly represents to the public that its products are free from defects which create fire hazards and danger from fire to life and property. The heating equipment installed in the building was designed, manufactured and made available to the public by General. The defendant Thompson Company is the agent in the State of Georgia for distributing the electrical heating and cooling equipment of General, and is so recognized and dealt with by General and by the purchasers in the State of Georgia of such General products. Thompson Company supplied Conditioned Air, Inc. of Macon, Georgia, with a 6.9 KW heater in about July of 1957 which was defective in that the contact points in the relay switches of the heater would fuse together without releasing contact, thereby causing the heater to become energized during the off cycle and creating an overheating condition. Said 6.9 KW heater was of General Electric make and was distributed to Thompson Company by General and by Thompson Company to Conditioned Air, Inc. in its original package. On or about July 25, 1957, General notified Thompson Company and Conditioned Air, Inc. that the relays in all 6.9 KW heaters might be defective and suggested that all relays be replaced in the 6.9 KW heater by supplementary replacement kits containing relays.
In September of 1957, General supplied Thompson Company, and Thompson Company in turn supplied Conditioned Air, Inc. with the replacement relays. Said replacement kits were received by Conditioned Air, Inc. in their original packages and were installed by Conditioned Air, Inc. on September 25, 1957, in the 6.9 KW heater on the premises of Griffith Mortgage Company. Said replacement relays were defective in the same manner as the original relays. General's employees and Thompson Company's employees failed to discover the defect in the replacement relays before they were supplied to Conditioned Air, Inc. On or about May 6, 1957, Mr. H. F. Solomon, an employee of Thompson Company, contacted George M. Nottingham, Jr., an engineer employed with Conditioned Air, Inc. and suggested to him that the 6.9 KW heater could be used in a duct as a supplementary heater. Said heater was originally designed and intended by General to be used inside a heating unit called the Weathertron 64 or WT64. On May 6, 1957, George M. Nottingham, Jr., pursuant to and in accordance with the suggestion of Mr. Solomon, wrote to Mr. H. J. Woodall of Thompson Company requesting advice as to whether the heater could be used outside the Weathertron 64 as a supplementary heater (a copy of which letter is attached as Exhibit "A") and on May 9, 1957, Mr. H. J. Woodall replied authorizing Conditioned Air, Inc. to use the heater as a supplementary heater in a duct (a copy of which letter is attached as Exhibit "B"). The heater was subsequently installed by Conditioned Air, Inc. in a duct on the described premises in accordance with the authorization of Mr. Woodall. The heater was placed in a duct which measured approximately 10 in. by 17 in. This installation was accomplished in such a manner that the heating coils were placed in close proximity (about one inch) to the bottom of the duct. The defendant, Thompson Company, at all times mentioned was the agent of General and the negligence of Thompson Company and its employees is imputable to General. Thompson Company, as the agent of General, was acting in behalf of General, and in the scope of its authority by recommending and approving the installation of said heater in a duct which measured about 10 inches by 17 inches. The defendants Conditioned Air, Inc. and Thompson Company planned and designed the installation of said heater, in a duct on the premises, and Conditioned Air installed said heater, maintained and serviced the same and in fact was engaged in servicing and making changes in said system in an effort to make it workable and to perform the use and purpose for which it was purchased at and immediately prior to the time of said fire. Said fire was caused by an overheating condition in the 6.9 KW strip heater which was installed by Conditioned Air, Inc. in a duct near the ladies' rest room toward the rear of the building referred to above as 129-145 First Street. The contact points in said relay switches in the unit described above stuck together causing the heating coils to become energized and a continuous flow of electricity to be supplied to the heating coils during the night of September 27th and the early morning hours of September 28th. Said heating coils were red hot and either came in contact with the bottom of the duct in which said unit was installed or came in such close proximity thereto that the duct itself became red hot. The duct in turn ignited the insulation material and joists around it, causing the fire. On the relays that were installed in said strip heater, there appeared a label which was inserted on said relays by two screws and which read as follows: "General Electric-Supplementary Heater Catalog #40869988 230 Volts 6.9 K.W. Made for use with 64 C."
The defendants, General, Thompson Company and Conditioned Air, Inc. were jointly and concurrently negligent and their negligence was the proximate cause of said fire as shown above and in more detail as set out hereinafter. The defendant General was negligent in the following respects: (a) In producing and supplying an electric heater in which the relay switches were defective as described before thereby creating a fire hazard; (b) In failing to supply adequate instructions to Thompson Company and Conditioned Air, Inc. as to the installation of said heater; (c) In failing to provide adequate safeguards against fire such as fusible links with the heating units when they were supplied to Thompson for distribution to Conditioned Air, Inc.; (d) In failing to adequately warn Conditioned Air and petitioner of the danger involved in the installation and use of the said equipment; (e) In failing to inspect and test the relay replacement switches to determine if they functioned properly; (f) In failing, upon learning that a number of the relay switches were defective, to adequately warn Thompson Company and Conditioned Air, Inc. of the danger involved and what steps should be taken to remedy possible defective relays. The defendant Thompson Company, Inc. was negligent in the following respects: (a) In authorizing and approving the installation of said heater in a duct with a width of 10 in. and a length of 17 in. which did not provide adequate clearance from the bottom of the duct to keep the heating coils from coming in contact with or in close proximity to the bottom of the duct. (b) In supplying an electric heater in which the relay switches were defective thereby causing an overheating condition in the heater. (c) In failing to supply adequate instructions to Conditioned Air as to the installation of said heater. (d) In failing to adequately warn Conditioned Air, Inc. and the petitioner of the danger involved in the installation and use of said equipment. (e) In failing to inspect and test the relay switches to determine if they functioned properly.
It is alleged that the defendant Conditioned Air, Inc. was negligent in the following respects: (a) In failing to provide adequate clearance between the bottom of the duct and the heating coils thereby causing the heating coils to come in close proximity to the bottom of the duct or to touch the bottom of the duct. (b) In placing an iron rod on the rear of the heating elements which caused the elements to sag toward the bottom of the duct. (c) In bending and cutting the top the of said strip heater to form a connection with the top of the duct in a negligent manner by not making said bend regular and smooth but in fact causing said connection to be irregular and not at precise right angles, thereby causing the entire unit to be unstable and allowing the heating coils to either touch or come in close proximity to the bottom of the duct. (d) In failing to provide an adequate support in the rear of the heater to hold it rigid and allowing said heating coils to "float" in the air stream without adequate support. (e) In failing to provide adequate safeguards such as fusible links to prevent the heating coils from overheating. (f) In cutting a hole in the duct that was not smooth but was in fact ragged thereby causing a loose and unstable connection between the heater and duct. (g) In failing to properly inspect and test the relay switches to determine if they were functioning properly. The foregoing acts of negligence of General, Thompson Company and Conditioned Air, Inc. concurred to cause said fire loss and, by reason of the facts alleged, petitioner has been injured and damaged in the sum of $55,000.
Count 2 alleges: "1. Petitioner adopts by reference and incorporates all of the paragraphs of Count One of this petition except paragraphs 7 and 26. 2. By reason of the aforesaid loss by fire, petitioner was deprived of the use of his income during the months of October, November and December, 1957, the rent for said premises being abated during said period while the property was being reconstructed and repaired, in the net amount, after deducting agent's commissions, of $2,294.25 and in addition petitioner has been without the use of said amount since on or about the first day of January, 1958, the reasonable income value thereof to date constituting a further loss and damage to petitioner. 3. By reason of the facts herein alleged, petitioner has been injured and damaged in the sum of $3,500.00."
Exhibit "A": "May 6, 1965. Mr. H. J. Woodall, Thompson Company, Box 7025, Station C, Atlanta, Georgia. Dear Woody: Sol has just pointed out to me the possibility of using the supplementary heater assemblies for the Weathertrons in conjunction with the TC series equipment as electric duct heaters. Could you possibly measure and let me know what size duct would be required for the 5 KW heater used with WT32, and also the 6.9 KW heater for use with the WT64. We need to order heaters for several jobs immediately and would like to use these heaters if possible. So, I would appreciate your prompt attention. Yours very truly, Conditioned Air, Inc., George M. Nottingham, Jr."
Exhibit "B": "May 9, 1957. Mr. George Nottingham, Jr., Conditioned Air, Inc., 633 North Avenue, Macon, Georgia. Dear George: As requested by your letter, dated May 6, 1957, I have checked the 563B891 Electric Duct Heater in a WT64 Weathertron. This unit is 6.9 KW, duct size 17" x 10" control box on outside of duct 8 1/4" H, 2 1/2" W, 3" D, and this unit is equipped with a 24-V coil to operate the 230V contacts. If this heater unit is used with equipment other than the WT64 unit, you will have to supply the control box cover and heating thermostat. I don't have any information on the heater unit for the WT32D unit. George, I think this is a very good idea to use this heater unit with the TC Air Conditioning Units. Very truly yours, Thompson Company, H. J. Woodall, Sales Manager. cc: Mr. H. F. Solomon."
The two defendants herein involved demurred generally and specially to the original petition. The petition was twice amended before the recompiled petition was filed by way of amendment. General and special demurrers were filed to the first two amendments and to the petition as amended each time and to the recompiled petition filed by way of amendment. No rulings were made on the demurrers to the original petition or demurrers to the petition as amended by the two first amendments. The court ex parte allowed the filing of the recompiled petition subject to demurrer and later amended the order of allowance, nunc pro tunc, by stating that the amendment was allowed subject to "motions, objections and demurrers." Whereupon, both defendants filed objections to the allowance of the recompiled petition and demurrers, general and special. The court sustained the general demurrer of General and sustained the objections and demurrers of Thompson Company and dismissed the recompiled petition as to each defendant, to which judgments M. B. Hatcher excepted.
At the outset it will be necessary to determine just what the issues are which must be decided. Plaintiff in error contends that the only pleading to be considered is the recompiled petition, filed as an amendment. If this is true no ruling would be necessary on the question whether new causes of action were added by the amendment by way of the recompiled petition. In other words, he claims that the original petition is to be disregarded in considering those questions. If this is correct there could be no addition of a new cause of action by the filing of the recompiled petition. This view is incorrect because the recompiled petition is an amendment and the questions of the additions of new causes of action must be determined by comparing the original petition with the recompiled petition, which we shall do later on in the opinion. The defendants in error contend that in determining these questions the recompiled petition must be compared with the original petition as twice amended. This view is not correct because if the recompiled petition (not redrafted petition after rulings on amendments and demurrers were made) omitted allegations made in the two amendments before rulings were made on them, the omission of such allegations was withdrawal of the omitted amendments and they would not be compared with the recompiled allegations. The original petition alleged as follows in counts 1 and 2: "8. The aforesaid fire and the resulting loss and damage to petitioner was caused by the negligent and improper installation in said building of air conditioning equipment which was defective and which was negligently manufactured and designed. 9. The defendant, General Electric Company, hereinafter referred to separately as General, is a well and nationally known manufacturer of electrical equipment, including air conditioning equipment, and owes to the public generally, including petitioner, the duty to exercise due care and skill in the manufacture, design and distribution of its electrical products to the public, and impliedly represents to the public that its products are free from defects which create fire hazards and danger from fire to life and property. The air conditioning equipment installed in the aforesaid building was designed, manufactured and made available to the public by General. 10. The defendant, Thompson Company, hereinafter referred to separately as Thompson, is the wholesale distributor for the State of Georgia of the electrical heating and cooling equipment of General, and is so recognized and dealt with by General and by the purchasers in the State of Georgia of such General products. Thompson is possessed of or is supposed and represented to be possessed of the requisite engineering skill and knowledge of the products of General to plan and promote the sale and distribution of said products, and to advise and consult with the public with respect to the plans and designs which are involved in the use of said products and with respect to the installation and use thereof. Thompson did in fact assist in the planning and designing of, and as such wholesale distributor did distribute and cause to be used, the electrical equipment involved in the aforesaid air conditioning installation. 11. Both General and Thompson knew, or in the exercise of ordinary care should have known, of the defective condition of said equipment and of the danger from fire caused thereby. 12. The defendant, Conditioned Air, Inc., hereinafter separately referred to as Conditioned Air, planned, designed and installed said air conditioning equipment, maintained and serviced the same, was in complete charge of said installation, maintenance and service, and was in fact engaged in servicing and making changes in said system in an effort to make it workable and to perform the use and purpose for which it was purchased, at and immediately prior to the time of said fire. 13. The defendants, General, as the producer, and Thompson, as the Georgia wholesale distributor, were negligent, and their negligence was a proximate cause of said fire, in the following respects: (a) In producing and supplying defective electrical equipment which created a fire hazard and which constituted a danger to life and property; (b) In permitting such defective equipment to be installed by Conditioned Air in petitioner's building; (c) In failing to adequately warn Conditioned Air and petitioner of the danger involved in the installation and use of said equipment; (d) In failing to adequately and properly advise Conditioned Air with respect to the installation of said equipment; (e) In failing to provide adequate safeguards against fire from the installation and use of said defective equipment. 14. Defendant, Conditioned Air, was negligent and its negligence constituted a proximate cause of said fire loss, in the following respects: (a) In using and permitting the use of equipment which constituted a fire hazard; (b) In failing to comply with the national electrical or Macon electrical codes in the electrical installation in the vicinity of the duct heating elements for the following reasons: (1) The 230 volt conductors supplying the heating elements were not enclosed in conduit. (2) The splices made between conductors were not installed in metallic boxes, and were not insulated. (3) The connections to the controlling relays and the heating elements were not made in a metallic enclosure. (c) In poorly accomplishing the installation of the heating elements in the duct work with respect to the location of the opening made in the side of the duct, the ragged edges, and the method of support, the presence of a steel bar across the top of the element supports tending to cause the lower portion to contact the duct; (d) In failing to leave adequate electrical clearances between the lower portion of the No. 2 heating element and the bottom of the duct, establishing a partial or high resistance contact with the duct; (e) In failing to provide protection, electrically, other than the 6-ampere fuses in the safety switches, which would not melt until at least 6900 watts of heat was developed at 115 volts. 15. The foregoing acts of negligence of General, Thompson and Conditioned Air concurred to cause the said fire loss."
1. The recompiled petition does not state a new and distinct cause of action when viewed in light of allegations of the original petition. The allegation in the recompiled petition that Thompson Company was the agent of General Electric does not change the cause of action for the reason that merely designating a party as a "distributor" does not import either agency or an independent contractor relationship as it does not disclose whether the employer exercises control over the one employed. The allegation is in the nature of a duplicitous one and in the absence of a special demurrer specifically pointing out the defect the plaintiff could have shown liability on either premise if the facts so warranted. If there had been a demurrer here based on uncertainty or duplicity an amendment electing to allege agency would not have been the adding of a new cause of action. This is especially true here in view of the allegations of the duties and practices of the distributor in the original petition. The court erred in sustaining Thompson Company's objections to that part of the recompiled petition which substituted the allegation of "agency" for "distributorship," the latter of which was contained in the original petition.
2. The recompiled petition did not add a new and distinct cause of action in alleging negligence of Thompson Company as consisting in part of authorizing and approving the installation of the heater in an inadequate duct. Here again we have duplicitous allegations in the original petition. There, Conditioned Air and Thompson Company are charged with designing the duct installation. As stated before, none of the demurrers to the allegations of the recompiled petition related to allegations in the amendments not included in the recompiled petition are being considered because when these allegations are withdrawn they are beyond the reach of demurrers. If there are duplicitous allegations in the recompiled petition there is no demurrer as to uncertainty or duplicity and there is no demurrer objecting to two inconsistent theories of liability in the same count. The court erred in sustaining Thompson Company's objection to the recompiled petition on this ground.
3. This court cannot say as a matter of law that the allegations of the failure of Thompson Company (and Conditioned Air, Inc.) to inspect and test the replacement relay switches which were furnished to replace the original relay switches which it had been notified might be defective, whether the alleged defects were latent or patent, did not constitute negligence. This is true assuming that it would not have been obliged to inspect the original relay switches because it had a right to rely on the manufacturer's warranty of an article delivered and to be sold for use in an original package. As to General, this point is immaterial, as it would be liable for defective manufacture, but it is relevant as to Thompson Company because it would be liable if it had a duty to inspect the replaced relays when it would not be liable if it had no such duty, that is, not liable as to injury resulting solely from negligent manufacture, which would be General's responsibility.
4. The fact that Conditioned Air, Inc., failed to inspect the replacement relays after being notified that the original ones might be defective does not insulate General or Thompson Company from liability. The failure of Thompson Company and Conditioned Air, Inc. to inspect, if it was their duty to do so, would be concurring negligence, rendering all of the defendants liable. The cases cited on the subject of insulation of manufacturers are cases where another party had actual knowledge of the defective manufacture and undertook to make repair thereof and failed to do so. Mere constructive knowledge is not sufficient to provide insulation of the manufacturer. The rationale of the law is that in case of actual knowledge of the defective manufacture and attempt to repair by a third party the proximate cause of injury or damage is the negligent repair, not the negligent manufacture.
5. It was error to sustain the general demurrers of General Electric and Thompson Company. The recompiled petition contained allegations of negligence sufficient to authorize a finding, if proved, that these parties were guilty of concurring negligence in the defective manufacture of the relay switches by General Electric, failure to inspect and test the replacement relays by Thompson Company, the recommending by Thompson Company, individually and as agent for General, of the use of an inadequate duct. No allegations negative this conclusion or that one or more contributed to the fire. The petition does not show on its face that the sole proximate cause of the fire was the negligent installation of the equipment in that the duct recommended was adequate and that properly installed in a properly installed duct, the defective relay switches would not have caused the fire.
6. The original petition contained enough to amend by. Code § 81-1302; Ellison v. Georgia R. c. Co., 87 Ga. 691, 707 ( 13 S.E. 809).
The court erred in sustaining the general demurrer of the General Electric Company and in sustaining the objections, special and general demurrers of Thompson Company.
Judgments reversed. Jordan and Deen, JJ., concur.